Montefiore Medical Center
Montefiore Medical Center ()

A medical malpractice lawsuit must continue because an expert raised factual issues over whether a nurse practitioner should have instructed her patient to remove a NuvaRing contraceptive device, a divided Manhattan appeals court ruled.

A 3-2 panel of the Appellate Division, First Department, allowed the lawsuit against Montefiore Medical Center brought by Sarah Adams, who suffered a pulmonary embolism and brain damage, to proceed based largely on a physician’s statements that, “if the nurse practitioner had … removed the NuvaRing, and referred plaintiff for further assessment, all of the subsequent injuries and complications suffered by plaintiff would have been avoided.”

Justices Sallie Manzanet-Daniels, Troy Webber and Angela Mazzarelli affirmed in part Bronx County Supreme Court Justice Douglas McKeon’s 2016 denial of Montefiore’s summary judgment motion.

Justices Richard Andrias and Peter Tom dissented in Adams v. Pilarte, 310425/11.

The split ruling focused mostly on whether issues of fact existed regarding the causation of Adams’ severe brain damage. Evidence in the suit included diverging expert opinions on causation, and the justices offered opposing views about whether the fact that Adams saw other physicians while complaining of chest pains meant that causation against Montefiore could not be shown.

In April 2010, Adams, then 17 and having a heart murmur and history of family heart disease, went to a Montefiore-run clinic inside her Bronx high school for contraceptive counseling. She was given a NuvaRing, a device that dispenses hormones into the body and that is known to increase the risk of developing blood clots, according to Manzanet-Daniels, who wrote for the majority.

In June 2010, Adams returned to the clinic complaining of shortness of breath and chest pains. The nurse practitioner who saw her did not document performing an evaluation of Adams’ heart and lungs, and did not consider the NuvaRing as a precipitating factor in her symptoms. Instead, the nurse assessed Adams as being dehydrated.

Later the same day, Adams went to see her pediatrician, who was not associated with Montefiore. He diagnosed her with asthma, even though she had no prior history and was not wheezing, according to the majority ruling.

Adams would see the pediatrician again several days later and went to the emergency room of Bronx-Lebanon Hospital as her chest pains worsened.

She was scheduled to see a pediatric cardiologist on June 10, 2010. But on June 8, she collapsed, suffering from a pulmonary embolism related to blood clotting. She went into cardiac arrest for eight minutes and suffered major brain damage. She spent a month in the hospital and now requires 24-hour care.

Adams’ expert, Dr. Melanie Gold, said, among other statements, that the Montefiore nurse practitioner “could have instructed plaintiff to remove the ring immediately, thereby at least beginning to correct any clotting imbalance,” the ruling noted.

Meanwhile, Dr. Lisa Bardack, a board-certified internist and defense expert, attempted to raise an issue of proximate causation. She said that “no reasonable or additional follow-up medical care could have been recommended by the nurse practitioner that was not provided by the higher level of care providers … and that no care rendered by the clinic’s nurse practitioner affected plaintiff’s outcome.”

But the majority disagreed, finding that issues of facts remain.

“At this stage, plaintiff’s expert’s affidavit suffices to raise a factual issue as to the element of causation,” Manzanet-Daniels wrote. “It may well be that the medical professionals who subsequently treated plaintiff are also at fault for failing to work her up for thromboembolism and failing to remove or direct her to remove the NuvaRing. Issues of relative culpability await resolution at trial.”

In the dissent, Andrias called Gold’s opinions speculative, saying she “failed to show that even if an imbalance in clotting existed on June 1, it would have resolved itself before June 8 if the NuvaRing had been removed that day, and failed to establish how the removal of the NuvaRing that day would have prevented plaintiff’s pulmonary embolism.”

“The theory that plaintiff was already suffering from a blood clot when she visited the clinic that day is based on supposition and hindsight,” he said.

Sherri Plotkin, a partner at Rheingold, Giuffra, Ruffo & Plotkin represented Adams.

“There is clearly a question of fact about Montefiore’s culpability in this matter,” Plotkin said June 15. “Montefiore was first line of defense, and the plaintiff, when she presented to the clinic, she presented with the classic signs and symptoms of a developing pulmonary embolism. But instead of doing an examination, the nurse just cavalierly diagnosed her as dehydrated. And [the nurse] never even considered removing the NuvaRing to see if that was a cause of the symptoms.”

Judy Selmeci, a partner at Wilson Elser Moskowitz Edelman & Dicker, represented Montefiore. She declined to comment.